SSA - POMS: PR 01115.048

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether the evidence submitted with the application for survivor child’s benefits on D~’s behalf is sufficient to establish a parent-child relationship with the deceased number holder B~ (NH).

ANSWER

Based on the information provided to the agency, we find that D~ could inherit from the NH under Texas intestate succession laws.Therefore, we find that the D~ is the NH’s natural child under the Act for purposes of determining his entitlement to surviving child’s benefits on the NH’s earning record.

BACKGROUND

A Texas birth certificate shows that in October 2002, A~ gave birth to D~. No father is listed on D~’s birth certificate. It is our understanding that A~ was not married to the NH or to any other man at the time of D~’s birth, and that she has never married. SSA’s numident records show that A~ listed no father on D~’s first Application for a Social Security Card (SS-5 Form). On a second SS-5 Form, dated December 2002, A~ listed L~ (L~) as D~’s father.

On or about May X, 2013, the NH died in Texas. On May XX, 2014, A~ applied for Child’s Insurance Benefits -- Survivor Claim on D~’s behalf as the NH’s child. There is no allegation of marriage between the NH and A~, no court order of support, no court order of paternity, no written acknowledgment by the NH, and no genetic testing. The evidence presented in support of this application includes the following statements from family and friends, D~’s birth certificate, and three SS-5 Forms.

Statements from A~ (D~’s Mother):

Written Statements dated May 14, 2014:

The application summary related to D~’s May 14, 2014, application for child’s benefits contains A~’s written remarks in which she stated that D~ was the NH’s child. Although she was never married to the NH (and has not ever been married to any other man), A~ stated that she lived with the NH from July 2001 through 2006, when their relationship ended. She further stated that between December 2001 and October 2002, the month D~ was born, she did not have a sexual relationship with anyone other than the NH. A~ also acknowledged that the NH did not provide regular financial support to D~, but he gave D~ twenty dollars on his birthday in 2012.

Despite completing the December 2002, SS-5 Form that listed L~ as D~’s father, A~ claimed in her written remarks that she did not know why L~ was listed as D~’s father. However, she acknowledged that L~ is the father of her other child, D2~, born on February. A~ stated that she had not seen L~ since 1999.

Phone Interview on May 19, 2014:

In a telephone interview on May 19, 2014, A~ stated that she listed L~ as D~’s father on the December 1, 2002, SS-5 Form because she wanted to make the NH jealous because he had cheated on her. A~ stated that she and L~ had a previous sexual relationship, which resulted in D2~’s birth, and that she wanted the NH to think she was still involved with L~.

Statements from L~ (Listed as D~’s Father on the December 2002 SS-5 Form):

Phone Interview on June 9, 2014:

L~ stated he knew A~, but claimed that he had never heard of or knew anything about D~. He admitted that he was D2~’s father, A~’s other child, and he stated that he believed he was incarcerated in 2002 and released in 2003.

Written Statement received on June 18, 2014:

L~ stated that he is not D~’s father and that he was unaware that A~ may have claimed he was D~’s father in the past. L~ corrected his prior statement, clarifying that he was incarcerated from May 2000 through May 2001, and stated that he was not D~’s father because had not seen A~ or D2~ since he went to jail in May 2000. After he was released in May 2001, he found out that A~ and D2~ had moved and he had not seen them since. He does not know the identity of D~’s father.

Statements from L2~ (the NH’s Biological Brother):

Phone Interview on May 1, 2014:

L2~ stated that the NH told him several times that he was not sure if D~ was his child.

L2~ provided the information for the funeral program to the funeral home, which included a statement that D~ was the NH’s child. The program states, “B~ is survived by his two children, C~ and D~ ….” L2~ stated he included the statement that D~ was the NH’s child because D~ had been told that the NH was his father and L2~ did not want to hurt D~’s feelings.

Written Statement dated May 26, 2014:

Contrary to his May 1, 2014 phone interview, L2~ stated that before D~ was born, the NH told L2~ that he believed he was D~’s father. The NH did not ask L2~ to keep this information secret or private and did not tell L2~ that he was not D~’s father. L2~ stated that the NH always lived by himself and A~ always lived by herself. However, he stated that D~ visited the NH every weekend. L2~ witnessed some of the time that D~ and the NH spent together, and he stated the NH “loved being a father to his son.” When he was not present during their time together, L2~stated that the NH came back happy after each visit with D~.

Phone Interview on June 9, 2014:

The agency conducted a follow up interview with L2~ due to conflicts between the information he provided during the May 1, 2014, phone interview and his May 26, 2014, written statement. Although he confirmed his prior statement that the NH sometimes denied that D~ was his biological child, L2~ clarified that the NH only denied biological parentage when he was mad at D~’s mother, A~. L2~ stated that he should have elaborated more on this issue during the May 1, 2014, phone interview.

Consistent with his May 26, 2014, written statement, L2~ stated that D~ was the NH’s child, and that the NH always interacted with D~ as his child. The last interaction L2~ observed between the NH and D~ was at the child’s birthday party in October 2012, which L2~ also attended. He stated that although D~ did not have B~ family characteristics when he was younger, L2~ observed family characteristics in D~ as he got older.

Statement from A2~ (the NH’s Biological Brother):

Written Statement dated December 20, 2014:^[56] A2~ completed a Verification Form on December 20, 2014, stating that the NH told him “around 2006” that D~ was his child, that the NH and A~ lived together in approximately 2006-2007 on ~~ Street, and that the NH also told L2~ (the NH’s Biological Brother) and L3~ that D~ was his son.

Statements from P~ (the NH’s Foster Mother):

Phone Interview on April 5, 2014:

P~ raised the NH from when he was a small child to an adult.She knew of the NH’s other child, C~, but did not know about D~ until the NH’s funeral where a woman introduced D~ to her as her grandchild.She did not get the woman’s name or address or the child’s name.

Phone Interview on July 29, 2014:

P~ stated that because the NH had never mentioned a child named D~ to her, she was surprised and skeptical about the child.During the phone conversation, P~ wanted to check with her son, S~, who was like a brother to the NH to ask him if he was aware that D~ was the NH’s child.She conferenced S~ into a three-way phone conversation, and he confirmed that D~ was the NH’s child.

Statements from T~ (D~’s Godmother):

Written Statement dated May 19, 2014:

T~ is D~’s godmother.She stated that when D~ was approximately three months old, the NH told her that he believed that he was D~’s father.The NH did not ask T~ to keep this information secret or private and never denied that he was D~’s father.

Without referencing specific dates or addresses, T~ stated that “they,” D~, and the NH, lived together in the same apartment complex where she lived.After they moved out of the apartment complex, they continued living together.After the NH and A~ ended their relationship, the NH moved back into the same apartment complex to live with friends.

Apparently referring to after the NH’s and A~’s relationship ended, T~ did not know whether D~ ever lived with the NH as his child, but she knew that D~ would stay with the NH on weekends in the summertime when he lived in the apartment complex with his friends after his relationship with A~ ended in 2006.She occasionally babysat D~ for the NH and thought the NH acted like a father to D~ when he had the child for weekends and when he brought D~ with him to get his haircut by T~’s boyfriend.

Written Statement dated September 17, 2014:

T~ stated that the NH and A~ lived together from 2001 through 2002 at ~~~~~~ and lived together from 2003 through 2006 at ~~ Street in Houston, Texas.

Statements from M~ (the NH’s Best Friend):

Written Statement dated May 20, 2014:

M~ stated that he was the NH’s best friend.“A long time ago,” the NH seemed pleased when he told M~ that he believed that he was D~’s father.The NH also told his other neighborhood friends that he was D~’s father.The NH did not ask M~ to keep this private or secret and never denied that he was D~’s father.

Without referencing specific dates or addresses, M~ stated that the NH lived with A~, but that at the time of the NH’s death, he lived with another woman and that A~ lived by herself.D~ lived with his mother, but he spent some weekends with his father, the NH.On one occasion, the NH and D~ stayed with M~ in his apartment for a week.

Written Statement dated August 30, 2014:

M~ stated that the NH and A~ lived together from 2001 through 2006.They lived at ~~ ~~ ~~ and then on the north side.

Other Evidence:

D~’s Texas birth certificate shows he was born on October, lists A~ as his mother, and does not list a father.A~’s address on the birth certificate appears to be ~~~~ of [illegible] ~~ ~~, Houston, Texas.

In the SS-5 Form A~ submitted for D~ on December 1, 2002, A~ listed her address as ~~~~~~ Drive, Houston, Texas 77060, and listed L~ as D~’s father.

In a SS-5 Form that the NH submitted on February 6, 2003, he listed his address as ~~~~ ~~ ~~, Houston, Texas 77071.

In a SS-5 Form that A~ submitted on May 11, 2003, A~ listed her mailing address as ~~ ~~ ~~ Drive, Houston, Texas 77060.

ANALYSIS

Federal Law:Entitlement to Surviving Child’s Benefits Under the Act

Under the Social Security Act (Act), a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured.42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a).To be entitled to survivor’s benefits on an insured number holder’s account, a child must:

1.

be the number holder’s child;
2.

be dependent on the number holder;
3.

apply for benefits;
4.

be unmarried; and
5.

be under specified age limits (18 or 19) or be under a disability which began prior to age 22.

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5).Under the Act and regulations, the term “child” includes a natural child.^[57] See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354.Here, it is undisputed that D’~ is unmarried, under the age of 18, and that A~ applied for benefits on his behalf. The agency will consider D’~ to be dependent on the NH if he is the NH’s natural child.See 20 C.F.R. § 404.361(a). Thus, the remaining issue is whether D’~ is the NH’s natural child.

For purposes of surviving child’s benefits, a claimant proves that he is a number holder’s natural child if:

1.

he could inherit property through intestate succession as the number holder’s natural child;
2.

he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;
3.

he is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or
4.

the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support when the number holder died.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Based on the information we received, D~ does not qualify as the NH’s natural child under tests two, three, or four.^[58] See 20 C.F.R. § 404.355(a)(2)-(4).Thus, to prove that he is eligible for child’s insurance benefits on the NH’s account, D~ must show under test one that he could inherit property from the NH through intestate succession.

To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death.See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b).Since the NH’s permanent home was in Texas when he died, D~’s eligibility for survivor’s benefits on the NH’s account depends upon whether he could inherit property under Texas intestacy laws as the NH’s child.See id.

State Law Requirements for Inheritance as a Child under Texas’s Intestate Succession Laws, Section 201.052 of the Texas Estates Code

Under Texas law, an individual can establish a father-child relationship for purposes of intestate inheritance under section 201.052 of the Texas Estates Code.See Tex. Estates Code Ann. §201.052(a), (d).^[59] For purposes of inheritance, a child is his biological father’s child if:

1.

he was born under circumstances section 160.201 of the Texas Family Code describes;
2.

he was adjudicated to be the father’s child by court decree as provided by chapter 160 of the Texas Family Code;
3.

the father adopted him;
4.

the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; or
5.

the child is not otherwise presumed to be the decedent’s child, but clear and convincing evidence establishes that the purported father was the biological father of the child.

See Tex. Estates Code Ann. § 201.052(a), (d).

The second, third, and fourth tests set forth in the Texas Estates Code are not applicable in this case.^[60] However, the evidence submitted with the legal opinion request contains evidence supporting D~’s ability to inherit from the NH as the NH’s biological child under tests one and five. Therefore, we first examine whether D~ can inherit under section 160.201 of the Texas Family Code and then examine whether clear and convincing evidence establishes that the NH was D~’s biological father.

Test One:The Circumstances Described in Section 160.201 of the Texas Family Code to Establish a Father-Child Relationship, In Particular, the Presumption of Paternity

Under Section 160.201 of the Texas Family Code, a father-child relationship exists if:(1) there is an unrebutted presumption of the man’s paternity of the child under Section 160.204 of the Texas Family Code; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth.See Tex. Fam. Code Ann. § 160.201(b)(1)-(5).

The second, third, fourth, and fifth tests set forth in Section 160.201 of the Texas Family Code are not applicable in this case.^[61] However, as noted below, the evidence submitted with the legal opinion request suggests that, under the first test, there may be an unrebutted presumption of the man’s paternity of the child under section 160.204 of the Texas Family Code.

Section 160.204 of the Texas Family Code provides:

a.
A man is presumed to be the father of a child if:
1. 1.
  
  he is married to the mother of the child and the child is born during the marriage;
2. 2.
  
  he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
3. 3.
  
  he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
4. 4.
  
  he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
  
  A.
  
  the assertion is in a record filed with the bureau of vital statistics;
  
  B.
  
  he is voluntarily named as the child's father on the child's birth certificate; or
  
  C.
  
  he promised in a record to support the child as his own; or
5. 5.
  
  during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

Tex. Fam. Code Ann. § 160.204(a).

Because the first four tests in Section 160.204 of the Texas Family Code require marriage between the man and the child’s mother and because there is no evidence of a marriage between the NH and A~, the NH is not D~’s presumed father.See Tex. Fam. Code Ann. §160.204(a)(1)-(4).We therefore examine the fifth test for a presumption of paternity (the holding out presumption) because there is evidence, albeit conflicting, that the NH resided with D~ and held out to others that he was D~’s father.See Tex. Fam. Code Ann. §160.204(a)(5).

To establish a presumption of paternity under Texas Family Code § 160.204(a)(5), a court must find by the preponderance of the evidence that during the first two years of D~’s life, the NH continuously resided in the same household as D~ and that the NH represented to others that D~ was his child.See Tex. Fam. Code Ann. §§ 105.005, 160.204(a)(5); see also Mena v. United States, 2012 WL 6047039, at *5 (W.D. Tex. Dec. 5, 2012) (holding that to raise a presumption of paternity under Texas Family Code § 160.204(a)(5), the holding out presumption, a court must find that it is applicable to the facts of the case by a preponderance of the evidence). The preponderance of the evidence standard requires a court to look at “all circumstances raised by the evidence” and determine whether the alleged fact “is more reasonably probable than not.” See Valles v. State, 646 S.W.2d 636, 638 (Tex. App.—Houston [1st Dist.] 1983, no writ); see also Mena, 2012 WL 6047039, at *5.

Because it is determinative, we first address whether D~ established by the preponderance of the evidence that during the first two years of D~’s life, the NH continuously resided in the same household as D~.See Tex. Fam. Code Ann. §§ 105.005, 160.204(a)(5).The evidence submitted contains conflicting evidence related to this finding.

Evidence supporting a finding that the NH continuously resided in the same household as D~ during the first two years of his life includes A~’s, T~’s, and M~’s statements that the NH and A~ lived together from 2001 through 2006 when their relationship ended.Additionally, T~’s statement carries additional weight for the period from D~’s birth until early 2003 because she was the NH and A~’s neighbor in the same apartment complex during that time.

Evidence supporting a finding that the NH did not continually reside with D~ during the first two years of his life includes the NH’s SS-5 Form that indicated the NH’s address in early 2003 was ~~~~ ~~ ~~; A~’s SS-5 Form and D~’ birth certificate indicating that A~’s address in late 2002 was ~~~~~~ Drive; L2~’s statements that A~ and the NH never lived together although D~ visited the NH every weekend and that the NH returned “happy” from each visit with D~; and M~’s statement that D~ lived with his mother but spent some weekends with the NH.In addition, we consider A~’s potential for financial gain from an award of benefits.

When considering all circumstances the evidence raises, we opine that is more reasonably probable than not that the NH did not reside in the same household as D~ during the first two years of his life.See Valles, 646 S.W.2d at 638.Because we conclude that the NH did not continuously reside in the household where D~ resided during the first two years of his life, he cannot inherit as the NH’s presumed child under section 160.201 of the Texas Family Code.See Tex. Estates Code Ann. § 201.052(a); Tex. Fam. Code Ann. §§ 160.201, 160.204(a).Accordingly, we next address whether there is clear and convincing evidence that the NH is D~’s biological father under section 201.052(d) of the Texas Estates Code.

Test Five:Clear and Convincing Evidence of Paternity Under Texas Law

A person claiming to be a decedent’s biological child may petition the probate court for a determination of right of inheritance from a decedent.See Tex. Estates Code Ann. §201.052(c).^[62] If the probate court finds by clear and convincing evidence that the purported father was the biological child’s father, the child is treated as any other child of the decedent for purposes of inheritance.See Tex. Estates Code Ann. § 201.052(d).Thus, we look to whether clear and convincing evidence establishes that the NH was D~’s father.

To establish a fact by clear and convincing evidence, the evidence must “produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”Tex. Fam. Code Ann. § 101.007; Villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.”).

In cases involving proof of paternity, the fact finder must decide in each case whether the evidence presented is clear and convincing.Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 275-76 (Tex. 1989) (holding that in a wrongful death action an alleged child must have the opportunity to prove by clear and convincing evidence that he is the deceased’s child). The Texas Supreme Court listed some of the potential evidence an alleged child may use to prove paternity, including:

1.

Blood or genetic tests;
2.

Evidence of physical resemblance of the child to the alleged father;
3.

Prior statements by the alleged father that he was the father of the child, or other admissions by him bearing on his relationship to the child; and
4.

Evidence of periods of conception and gestation.

Id. at 276; see also In Interest of B.M., 570 S.W.2d 493, 501 (Tex. Civ. App.—Texarkana 1978, no writ).However, the Texas Supreme Court concluded that it could not predict whether some or all of this evidence would rise to the level of clear and convincing evidence in any particular case.Id. Texas law does not require blood or other genetic evidence to establish by clear and convincing evidence that an alleged father is a child’s father.See Tex. Estates Code Ann. §201.052(d); Garza, 768 S.W.2d at 276.^[63] In paternity cases that do not involved genetic testing, credibility is a determining factor.See, e.g., Villery, 16 S.W.3d 106 (crediting the testimony of some family members over others); Gurka v. Gurka, 402 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (finding paternity by crediting the testimony of the alleged father over the mother); see also Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (finding in the context of Texas property law that a self-serving statement did not amount to clear and convincing evidence).

In Villery, the appellate court affirmed the probate court’s finding that clear and convincing evidence showed that the child was the decedent’s daughter and heir, even in the absence of any genetic evidence.Villery, 16 S.W.3d at 107-110.The majority of the evidence supporting the court’s decision consisted of statements from relatives and friends, including the child, the child’s mother, the child’s brother, the decedent’s aunt, and two of the decedent’s sisters.Id. They testified that the decedent acknowledged the child as his daughter, he visited her, he provided financial support, and the funeral program identified the child as the decedent’s daughter.Id. Although the court considered contrary evidence, including testimony that the decedent expressed doubts about whether he was the child’s father, the court ultimately determined that the statements that the child was the decedent’s daughter were credible and, thus, found that clear and convincing evidence supported the finding that the child was the decedent’s daughter and heir.Id.

In Gurka, the probate court had to determine the biological father of a deceased child because the alleged father filed a wrongful death action.Gurka, 402 S.W.3d 341.In this case, the probate court weighed conflicting evidence, including prior inconsistent sworn statements from the alleged father regarding whether he was the child’s father, and determined that clear and convincing evidence supported the finding that alleged father was the biological father of the deceased child.Id.Although the child’s mother alleged another individual was the child’s father, the probate court disregarded the allegation because there was minimal evidence supporting the allegation.Id. at 345-46.Among other facts, the probate court found persuasive the testimony that the child’s physical characteristics were similar to the alleged father’s and the testimony that the alleged father acted like the child’s biological father.Id. at 346.The probate court did not have any blood or genetic evidence to consider.Id.The appellate court affirmed the probate court’s decision because despite any conflicting evidence and a lack of genetic evidence, the probate court could have reasonably formed a firm belief or conviction that the alleged father was the child’s biological father.Id. at 349.

In the present matter, consistent with Villery and Gurka, the evidence submitted with the legal opinion request provides enough evidence for us to form a firm belief or conviction that the NH was D~’s biological father.See Tex. Fam. Code Ann. § 101.007 (defining clear and convincing evidence as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established”).Multiple sources, including A~, T~, L2~, A2~, S~, and M~ stated that the NH considered himself D~’s father.Although L~ initially stated that the NH told him several times that he was not sure if D~ was his child, he later clarified that the NH only denied biological parentage when he was mad at D~’s mother and stated that the NH told him that he believed he was D~’s father.Although the NH did not tell P~ (the NH’s foster mother) about D~, he also never denied his paternity to P~.The evidence regarding the NH’s prior statements to his friends and family that he was D~’s father outweighs any contrary evidence, including L~’s initial statements, which L~ later admitted he should have clarified, and P~’s skepticism, which S~ addressed.Thus, the totality of the evidence supports the conclusion that the NH was D~’s father.See Garza, 768 S.W.2d at 276 (providing that evidence an alleged child may use to prove paternity includes an alleged father’s statements that he was the child’s father).

The only direct evidence that the NH is not D~’s father comes from the December 1, 2002 SS-5 Form, on which A~ listed L~ as D~’s father.A~ stated that she listed L~ as D~’s father to make the NH jealous, but she later clarified, and continues to maintain, that the NH, not L~, is D~’s father.Consistent with the clarification, A~ stated that during the gestational period^[64] of December 2001 through October 2002, she did not have a sexual relationship with anyone other than the NH.Also, L~ asserted that he was not D~’s father because he had not seen A~ since May 2000.Thus, considering periods of gestation and conception, L~ could not be D~’s father.See Garza, 768 S.W.2d at 276 (providing that evidence an alleged child may use to prove paternity includes evidence of periods of gestation and conception).Because L~’s statements in this regard corroborates A~’s assertion that L~ is not the father, we credit these statements over the December 2002 SS-5 Form listing L~ as D~’s father.See, e.g., Gurka, 402 S.W.3d at 345-46 (where the probate court held that clear and convincing evidence supported the alleged father’s paternity despite the mother’s claim that another man was the child’s father).

Other evidence supporting a finding that the NH is D~’s father include L2~’s statement that he observed B~ family characteristics in D~ as he got older; L2~’s inclusion of D~ in the funeral program as the NH’s child; and L2~’s, T~’s, and M~’s statements that D~ visited the NH on the weekends, acted like his father, and attended his birthday party.See Garza, 768 S.W.2d at 276 (providing that evidence an alleged child may use to prove paternity includes evidence of physical resemble ~ of the child to the alleged father); Gurka, 402 S.W.3d at 346 (providing that the court found persuasive the testimony that the child’s physical characteristics were similar to the alleged father’s and that the alleged father acted like the father); Villery, 16 S.W.3d at 108 (citing the child’s inclusion in the memorial service program as the deceased’s child and visits to see the child as evidence of paternity).

Considering the totality of the evidence, we find clear and convincing evidence that the NH is D~’s father.See Tex. Fam. Code Ann. § 101.007; see also Villery, 16 S.W.3d at 107.As a result, D~ could inherit from the NH under Texas intestate succession laws.See Tex. Estates Code Ann. § 201.052(d).

CONCLUSION

Based on the information provided to the agency, we find that D~ could inherit from the NH under Texas intestate succession laws. Therefore, we find that the D~ is the NH’s natural child under the Act for purposes of determining his entitlement to surviving child’s benefits on the NH’s earning record.

Michael McGaughran

Regional Chief Counsel

By:____________
M~ J. Carey
Assistant Regional Counsel

SSA - POMS: PR 01115.048 - Texas (2024)